ILLINOIS POLLUTION CONTROL BOARD
January
19,
1989
NEW JERSEY ZINC COMPANY,
Petitioner,
v.
)
PCB 88—130
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Resoondent.
JAMES
F.
ALLEN,
ESQ.,
OF SQUIRES,
SANDERS
AND DEMPSEY,
COLUMBUS,
OHIO,
APPEARED ON BEHALF OF THE PETITIONER.
THOMAS DAVIS,
ESQ.,
APPEARED ON BEHALF
OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by M.
Nardulli):
This matter comes before
the Boar~ on
a August
18,
1988
Request
for Extension
for Variance filed
on behalf of the New
Jersey Zinc Company (hereinafter “NJZ”).
In an order dated
August
18,
1988,
the Board informed the Petitioner
that the
matter must be treated
as
a new petition
for variance.
In
response, the Petitioner
filed
a Petition
for Variance on August
31,
1988.
On October
12,
1988,
the Illinois
Environmental
Protection Agency (hereinafter ~Agency~)
filed
a recommendation
that variance
be granted.
Hearing was held on
this matter
on
October 28,
1988
in Princeton, Bureau County.
The Board hereby
grants the requested variance subject
to conditions.
BACKGROUND
The NJZ plant,
located at Dc
Pue,
Bureau County,
is engaged
in the manufacture of zinc dust
for the coatings industry.
In
a
predominately agricultural
area,
it employs approximately 26
people.
In previous years, NJZ’s processing and manufacturing
activities generated
residues from
zinc
smelting, and lithopone
waste
from pigment production.
These waste materials, which are
not produced by current operations, were placed
on
a field
at the
plant
site.
The zinc smelting residues were deposited
in one
pile at the southern end
of
the property, known
as the “cinder
bank.”
North of this pile, lithopone
residues were collected
in
five ridges.
At one time,
an open ditch surrounded
the cinder
bank.
Runoff from the cinder bank and
lithopone piles drained
into the ditch,
which
then flowed
in
a generally southerly
direction into
a storm drain
for Marquette Street.
The
groundwater table
for this area
is high,
and
in
times of heavy
95—305
—2—
rainfall, groundwater
would seep
into
the ditch, and combine with
land runoff.
The Marquette Street drain carried
the runoff
to
Lake DePue,
a shallow oxbow lake created
by the changing course
of the Illinois River.
Lake DePue
is
in equilibrium with the
Illinois River,
rising and falling as the river
level varies.
In March of
1978,
the State of Illinois commenced
a civil
action against NJZ
in
Bureau County,
Illinois Circuit Court.
(People of
the State of Illinois
v.
Gulf
& Western Industries and
the New Jersey Zinc
Co., Case
No. 78-CH—4).
The Agency asserted
that water conveyed by the open ditch contained levels of metals
in excess of the contaminant levels
in
35
111. Mm.
Code 304.124
(or Rule 408,
as
it was then identified).
The Agency sought
injunctive relief that would require NJZ
to take action
to reduce
the metals contained
in
the ditch water.
The action was resolved
by entry of
a Consent Order and Agreement on October
30,
1981.
This Order
directed NJZ
to make certain physical
changes
to
reduce
the amount of metals picked up by stormwater runoff and
to
convey that stormwater runoff
in
a manner
so as to isolate
it
from groundwater
seepage.
The remedial measures
required under
the Court
Order were completed by August
1985,
to the Agency’s
satisfaction.
The Agency subsequently approved the construction
and released $200,000
of
a
$225,000 performance bond.
The
remaining $25,000 was released at the expiration of the Consent
Order
on October
30,
1986.
Pursuant
to the
terms of
the Consent Order, and subsequent
federal regulations
found
at
40 CFR Section 122.26, NJZ
is
required
to secure an NPDES permit.
The present NPDES permit
places effluent limits on
the discharge of certain parameters.
NJZ’s variance petition requests relief from six
of those
parameters.
All Concent1rations
in mg/i
Current Limits
Requested Limits
Parameter
30—Day Average
&
Daily Max.
30—Day Average
&
Daily Max
cadium
0.15
0.3
0.3
1.0
copper
0.5
1.0
2.0
4.0
iron
2.0
4.0
3.0
6.0
manganese
1.0
2.0
5.0
10.0
TSS
15
30
150
zinc
1.0
2.0
25
50
NJZ requests that
it
be allowed
to subtract the upsteam
concentration of any parameter
in determining
its effluent
values.
In
the Opinion and Order
in PCB 86—187,
the Board granted
NJZ
a variance until November
30,
1988
at which time NJZ was
to
submit
a plan
for ultimate compliance
with
the Agency.
The
1.
These values are directly from 35 Ill. Mm. Code 304.124(a).
and
the
Averaging rule at
35 Ill. Mm. Code 304.104(a).
95—306
—3—
petition
for
variance
includes
the
Petitioner’s
compliance
plan.
PETITIONERtS
COMPLIANCE
PLAN
In
the
compliance
plan,
NJZ
proposes
the
use
of
“iron-rich
material”
(hereinafter
“IRM”)
as
a
medium
for
control
of
heavy
metals
in
the
seepage
and
runoff.
The
IRM
is
a
granular,
porous
product
with
high
internal
surface
area
of
up
to
10
square
meters
per
gram.
The natural basicity of this material
(9.0—10.5)
is
ideally
suited
to
the precipitation of heavy metals from aqueous
systems
and
the
high
internal
porosity
acts
to
capture
the
precipitated
hydroxides
and
hold
them within
the matrix.
In
the
August
18,
1988
filing,
of
the Petition
for Extension
of
Variance,
NJZ
stated
that
it
had
successfully employed
this
control
system
at
another
plant
and offered
the following
explanation
of
the
compliance
plan.
As
part
of
its
compliance
plan,
the
company
proposes
to
line
the
trench
upstream
of
the
cinder
bank
with
a
layer
of iron—rich
material.
This trench has been observed
to have
a number
of sub—
surfac2 seeps
from the high ground water
table.
By forcing
these
seeps
to percolate
through
a layer of
IRM,
the contained heavy
metals should
be precipitated
and absorbed.
The IRM material
will
be held
in place by
a layer
of six—inch crushed stone,
allowing
for
flow of all surface
water
from the surrounding
prope r t
y.
A second phase
of the project
will
be
to install
a “slurry
wall”
of
IRM between
the cinder bank and the storm water
sewer.
This IRM barrier
should act
to
intercept heavy metals which would
migrate
toward the storm sewer and toward Lake DePue.
The Company also proposes
to obtain
the necessary permission
to replace broken sewer lines beneath Marquette Street to
install
an
IRM—lined collection sump at the south
end of Marquette Street
where there
is some evidence of heavy metal migration through
hydrosta tic pressure.
In addition
to this work,
the Company proposes
to
perform
annual
water
quality
surveys
in
Lake DePue
and
will
provide
regular
monitoring
of water quality at
its Site
III sample
point.
To allow for completion
of
the proposed
improvements and
a
meaningful
evaluation
of
results thereafter, the Company will
require
a
variance
through November
30,
1993.
NJZ has committed
to implementing
the compliance plan
in
accordance with
the following schedule:
a.
Begin to construct
IRM upstream trench
lining
outlined
in
the
compliance
plan
by
April
30,
1989.
Construction
would
95—307
—4—
commence
in
the
spring
construction
season
immediately
following
the
Board’s
grant
of
a
variance.
b.
Complete
construction
of
IRM
upstream
trench
lining
by
August
31,
1989.
c.
Complete
construction
of
IRM
slurry
wall
by
August
30,
1990.
d.
Complete construction of the
IRM
collection sump by April
30,
1991.
e.
Submit
an
interim
report
evaluating
the
effectiveness
of
the
compliance
plan
by
November
30,
1992.
f.
Submit
a
final
report
evaluating
the
effectiveness of the compliance plan by
November
30,
1993.
After construction
of
the improvements by April
30,
1991,
their effect on effluent concentrations must be analyzed.
NJZ
proposes
to collect one year~sworth of effluent data
(from April
1991 through April
1992)
to aid
in this analysis.
The results
of
lake water quality sampling performed
in April
of
1992 will
also
be examined
to prelimii~arilyassess the effect of
the
improvements.
The proposed schedule provides
for seven months
to
compile
the data,
prepare
a
report,
and
review
the
result
with
Illinois
EPA,
by November
of
1992.
The company believes that
an
additional
year
of
evaluation
(November
1992
through
November
1993)
is required
to determine
the
longer—term
effecti~’eness
of
the
improvements.
In addition
to
the improvements, NJZ proposes
to conduct
annual
studies
of
Lake DePue during
the project construction and
evaluation period:
a.
Perform annual water quality sampling
at
Lake
DePue
in
1989 through
1993
in
April
or May of each year.
b.
By September
30 each year,
1989 through
1993,
submit
results
of water quality
sampling
and
report
to
Illinois
EPA.
HARDSHIP AND ENVIRONMENTAL IMPACT
In
its petition for variance, NJZ
fails
to present
an
argument
that
compliance
with
Section
304.124 during
the
requested variance would result
in
an arbitrary
or unreasonable
95—308
—5—
hardship.
However,
based
on
the
record, there
is
no apparent way
for
NJZ
to
come
into
compliance
during
the
requested
compliance
period.
Contrasting with the issue
of hardship is
the
issue of
environmental impact.
Both the Agency and NJZ believe
that the
risk of environmental harm
is minimal
at present levels of
discharge.
The
Agency
states
that
the
impact
of
discharges
on
Lake
DePue
and
the
Illinois
River
has
shown
improvement
since
the
Petitioner
implemented
remedial
efforts.
The
Agency
did
express
concern about water quality in
the
lake and
in
the groundwater
as
well
as concern
for the effect of the metals upon
fish and
wildlife.
However,
the Agency concluded
that there was no
apparent threat
to public health because of the present
discharge.
NJZ’s
timely
compliance
with
35
Ill.
Mm.
Code
304.124 should significantly reduce
the risk
to the environment.
AGENCY RECOMMENDATION
In
its recommendation of October
12,
1988,
the Agency stated
that
it would recommend
that the variance request be granted
and
that the interim effluent
limitations continue
in effect
if
concerns about
the possible hazardous nature of
IRM can be
reduced.
In response, NJZ filed information
regarding the non—
hazardous
status of IRM with
the Board
on October
25,
1988.
Further, NJZ addressed
the
issue of
the non—hazardous nature of
IRM at hearing.
After receiving the materials submitted
and the
additional
testimony,
the Agency recommended
that
the
variance
be
granted.
(R.
71).
CONCLUSION
The Board
finds
that compliance with
the regulations would
result
in an arbitrary or
unreasonable hardship on NJZ.
Accordingly,
the variance will
be granted
with conditions
consistent with
this Opinion.
This Opinion constitutes
the Board’s findings of
fact and
conclusions
of law
in this matter.
ORDER
New Jersey Zinc Company
is hereby granted
a variance from
35
Ill. Mm.
Code 304.124(a), as
it pertains
to cadmium,
copper,
iron, manganese,
zinc, and
total
suspended solids, subject
to the
following
conditions:
1.
This variance will
expire November
30,
1993.
2.
During
the
term
of
this
variance,
the
95—309
—6—
following
interim
limits
shall
apply
to
New Jersey Zinc’s discharge:
Parameter
30—Day
Av.
Daily
Max.
cadmium
0.5
1.0
copper
2.0
4.0
iron
3.0
6.0
manganese
5.0
10.0
TSS
75
150
zinc
25
50
3.
Sampling
and analysis of effluent
parameters
shall
be
in accordance with New
Jersey Zinc’s NPDES permit.
However,
in
determining whether compliance has
occurred,
New
Jersey
Zinc
may
subtract
the
concentration of any background
level
of
contaminant determined
by sampling
at
Point
II
of their NPDES permit.
All
sampling
and analysis data shall
be
reported
to the Illinois Environmental
Protection Agency;
4.
New Jersey Zinc shall submit quarterly
reports
to the Illinois Environmental
Protection Agency, within
15 days
of each
calendar quarter;
5.
Within
45 days after
the date
of this
Opinion and Order,
New Jersey Zinc shall
execute and send
to:
Illinois Environmental Protection
Agency
Attention:
Thomas Davis
Enforcement Programs
2200 Churchill
Road
Springfield,
IL
62794—9276
a certificate of acceptance of
this
variance by which
it agrees
to be bound by
the
terms and conditions contained
herein.
This variance will be void
if New
Jersey
Zinc
fails
to execute and
forward
the certificate within the 45—day
period.
The 45—day period shall
be held
in
abeyance
for
any
period
during
which
the matter
is appealed.
The form of
the
certification shall
be as
follows:
95—310
—7—
CERTIFICATION
I,
(We)
,
having
read the Opinion and Order of the Illinois Pollution Control
Board
in PCB 88—130,
dated January 19,
1989, understand
and
accept the
said Opinion and Order,
realizing that such acceptance
renders all
terms and conditions thereto binding and enforceable.
Petitioner
Authorized Agent
Ti.tie
Date
Section
41
of the Environmental Protection Act
(Ill.
Rev.
Stat.
ch.
1111/2,
par.
1041,
1985,
provides
for appeal of final
Orders of the Board within
35 days.
The Rules
of the Supreme
Court of Illinois establish
filing requirements.
IT
IS SO ORDERED.
I,
Dorothy M Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
/9iC~
day of
~
1989, by
a vote of
~
.
Dor’bthy M. Gun,
Clerk,
Illinois Pollution Control
Board
95—311